H-2A Agricultural Guestworker Program: Changes Could Improve Services to Employers and Better Protect Workers

Highlights

Pursuant to a legislative requirement, GAO reviewed various aspects of the H-2A nonimmigrant guestworker program, focusing on the: (1) likelihood of a widespread agricultural labor shortage and its impact on the need for nonimmigrant guestworkers; and (2) H-2A program's ability to meet the needs of agricultural workers, both at present and if a significant number of nonimmigrant guestworkers is needed in the future.

Recommendations

Matter for Congressional Consideration

Matter	Status	Comments
To protect work opportunities for domestic workers by ensuring that sufficient time is available for agricultural employers to positively recruit them while reducing the total processing time, Congress should amend the Immigration and Nationality Act so that, as long as the authority for approval of H-2A visa petitions remains with Labor, Labor is required to complete all applications at least 7 days before the date of need, rather than 20 days.	Closed – Not Implemented	Public Law 106-78, signed by President Clinton in October 1999, amends the Immigration and Nationality Act to require the Department of Labor to complete all H-2A applications within 30 days of the date of need from the current 20 days.

Recommendations for Executive Action

Agency Affected	Recommendation	Status
Department of Justice	To simplify the H-2A application process and reduce the cost and burden on agricultural employers, the Attorney General should delegate authority for approval of H-2A visa petitions from INS to the Secretary of Labor or designee and revise corresponding regulations as necessary to implement and facilitate such an agreement, including revising visa extension and appeals procedures.	Closed – Not Implemented INS and Labor issued a final rule in the Federal Register to delegate authority for approval of H-2A petitions from INS to Labor. However, because of strong opposition from agricultural employers and farmworker advocates, Labor requested formal approval from OMB to withdraw the final rule, and INS is preparing to withdraw its final rule.
Department of Labor	After the Attorney General has delegated INS' role in petition approval to Labor, to reduce total application processing time and facilitate better accuracy in estimating the date workers will be needed, the Secretary of Labor should amend the regulations to allow H-2A applications to be submitted up to 45, rather than 60, days before the date of need so long as INS does not have a role in the petition approval process.	Closed – Implemented Labor amended and implemented final regulations to change the time for filing H-2A labor certification applications from 60 to 45 days before the date the employer needs workers.
Department of Labor	To better protect both domestic and H-2A workers, the Secretary of Labor should extend the authority to suspend employers with serious labor standard or H-2A contract violations to the Wage and Hour Division.	Closed – Not Implemented Labor proposed transferring responsibility for the H-2A program to the Wage and Hour Division, including the authority to suspend employers with violations to Congress as part of its fiscal year 2000 budget. Congress did not approve it. Labor does not intend to propose it again.
Department of Labor	To better protect both the domestic and H-2A workers, the Secretary of Labor should revise its regulations to require agricultural employers to guarantee H-2A workers' wages for the first week after the date of need and to pay workers those wages no later than 7 days after the date of need.	Closed – Not Implemented Labor will not pursue consideration of this recommendation because it found no evidence of significant abuse of foreign workers resulting from the absence of the first week guarantee protection. As a result, Labor believes it would not be cost effective to revise the regulations by replicating the notice requirements that are essential for operating the first week guarantee wage provisions.
Department of Labor	To better protect both domestic and H-2A workers, the Secretary of Labor should revise regulations regarding the three-quarter guarantee to remove incentives to overestimate the contract period. Revisions Labor considers should include applying the guarantee incrementally during the duration of the H-2A contract in a manner that would improve the protection afforded to H-2A workers but also minimize any additional administrative burden on agricultural employers.	Closed – Not Implemented Labor will not pursue consideration of this recommendation because it found no evidence of significant abuse in the operation of the 3/4 guarantee. According to Labor, any change in operations would impose a significant burden on the employer without any significant benefit to the workers.
Department of Labor	To improve service to both employers and workers, the Secretary of Labor should regularly collect data on its performance in meeting H-2A regulatory and statutory deadlines for processing H-2A applications, and use these data to monitor and improve its performance.	Closed – Implemented The Employment and Training Administration awarded a contract to a private firm to develop and implement an automated reporting and application processing system for the H-2A program. A temporary system is being used to track data in the regional offices. This system will be replaced in October 2002, by the permanent H-2A data tracking and processing system.
Department of Labor	To improve service to both employers and workers, the Secretary of Labor should update and revise the H-2A handbook to include the procedures for all agencies involved and key contact points, both at Labor and at other agencies.	Closed – Implemented The Employment and Training Administration (ETA) established a User Workgroup to draft a revised version of the H-2A Handbook. Labor issued the revised handbook in October 2003. To ensure that all staff were familiar with the revisions, ETA provided training to all regional staff. The revised handbook is now being used by all staff.

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Topics

Employment

Agricultural industryAgricultural productionH-2A VisasImmigration enforcementImmigrantsInteragency relationsLabor lawPerformance measuresWorking conditionsAgricultural workers